<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 3, 1997
REGISTRATION NO. 333-20567
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
MARQUETTE MEDICAL SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
WISCONSIN 39-1046671
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
8200 WEST TOWER AVENUE
MILWAUKEE, WISCONSIN 53223
(414) 355-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
--------------
TIMOTHY C. MICKELSON
PRESIDENT AND CHIEF OPERATING OFFICER
MARQUETTE MEDICAL SYSTEMS, INC.
8200 WEST TOWER AVENUE
MILWAUKEE, WISCONSIN 53223
(414) 355-5000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
WITH A COPY TO:
RICHARD L. TEIGEN, ESQ. MELVIN S. NEWMAN, ESQ. CRAIG E. DAUCHY, ESQ.
FOLEY & LARDNER SCHOENBERG, FISHER & NEWMAN, LTD. COOLEY GODWARD LLP
777 EAST WISCONSIN AVENUE
222 SOUTH RIVERSIDE PLAZA, SUITE 2100
3000 SAND HILL ROAD
MILWAUKEE, WISCONSIN CHICAGO, ILLINOIS 60606- BUILDING 3, SUITE 230
53202-5367 6101 MENLO PARK, CALIFORNIA
(414) 271-2400 (312) 648-2300 94025-7116
(415) 843-5033
--------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) of
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
--------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
-------- -----------------------
<C> <S>
(1) Form of Underwriting Agreement.
Restated Articles of Incorporation of Marquette Medical
(4.1)* Systems, Inc., as amended.
(4.2) Amended and Restated By-Laws of Marquette Medical
Systems, Inc., as amended.
(4.3) Rights Agreement, dated as of December 18, 1996, between
Marquette Medical Systems, Inc. and Firstar Trust
Company as Rights Agent (incorporated by reference to
Exhibit 4 to Marquette Medical System, Inc.'s Current
Report on Form 8-K dated December 18, 1996).
(5)* Opinion of Schoenberg, Fisher & Newman, Ltd.
Consent of Schoenberg, Fisher & Newman, Ltd. (included
(23.1) in Exhibit (5)).
(23.2)* Consent of Arthur Andersen LLP
(24) Powers of Attorney relating to subsequent amendments
(included on the signature page of Registration
Statement).
</TABLE>
- --------
* Previously filed
II-1
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT TO THE
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF MILWAUKEE, AND STATE OF WISCONSIN,
ON THIS 3RD DAY OF MARCH, 1997.
MARQUETTE MEDICAL SYSTEMS, INC.
/s/ Timothy C. Mickelson
By: _________________________________
Timothy C. Mickelson
President and
Chief Operating Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS
IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Michael J. Cudahy* Chief Executive Officer and March 3, 1997
____________________________________ Director (Principal
Michael J. Cudahy Executive Officer)
/s/ Timothy C. Mickelson President, Chief Operating March 3, 1997
____________________________________ Officer and Director
Timothy C. Mickelson
/s/ Mary M. Kabacinski Senior Vice President, Chief March 3, 1997
____________________________________ Financial Officer,
Mary M. Kabacinski Treasurer and Assistant
Secretary (Principal
Financial and Accounting
Officer)
/s/ John G. Bollinger* Director March 3, 1997
____________________________________
John G. Bollinger
/s/ Frederick G. Luber* March 3, 1997
____________________________________ Director
Frederick G. Luber
/s/ Melvin S. Newman* March 3, 1997
____________________________________ Director
Melvin S. Newman
/s/ Walter L. Robb* March 3, 1997
____________________________________ Director
Walter L. Robb
/s/ Peter P. Tong* March 3, 1997
____________________________________ Director
Peter P. Tong
</TABLE>
/s/ Mary M. Kabacinski
*By: _____________________
Mary M. Kabacinski
Attorney-in-Fact
II-2
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
------- --------------------
<C> <S> <C>
(1) Form of Underwriting Agreement.
(4.1)* Restated Articles of Incorporation of Marquette Medical Sys-
tems, Inc., as amended.
(4.2) Amended and Restates By-Laws of Marquette Medical Systems,
Inc., as amended.
(4.3) Rights Agreement, dated as of December 18, 1996, between Mar-
quette Medical Systems, Inc. and Firstar Trust Company, as
Rights Agent (incorporated by reference to Exhibit 4 to Mar-
quette Medical System, Inc.'s Current Report on Form 8-K dated
December 18, 1996).
(5)* Opinion of Schoenberg, Fisher & Newman, Ltd.
(23.1) Consent of Schoenberg, Fisher & Newman, Ltd. (included in Ex-
hibit (5)).
(23.2)* Consent of Arthur Andersen LLP.
(24) Powers of Attorney relating to subsequent amendments (included
on signature page of Registration Statement).
</TABLE>
- --------
* Previously filed
<PAGE>
EXHIBIT 1
DRAFT: 02/27/97
MARQUETTE MEDICAL SYSTEMS, INC.
COMMON STOCK
($0.10 PAR VALUE)
UNDERWRITING AGREEMENT
_____________ __, 1997
1.
<PAGE>
UNDERWRITING AGREEMENT
___________, 1997
Dillon, Read & Co. Inc.
535 Madison Avenue
New York, New York 10022
Bear, Stearns & Co. Inc.
245 Park Avenue, 3rd Floor
New York, NY 10167
Robert W. Baird & Co. Incorporated
777 East Wisconsin Avenue
Milwaukee, WI 53202-5391
as Managing Underwriters
Dear Sirs:
Marquette Medical Systems, Inc., a Wisconsin corporation (the "Company"),
proposes to issue and sell and the persons named in Schedule B (the "Selling
Shareholders") propose to sell to the underwriters named in Schedule A (the
"Underwriters") an aggregate of 2,750,000 shares (the "Firm Shares") of Class A
Common Stock, par value $0.10 per share (the "Common Stock"), of the Company, of
which 1,000,000 shares are to be issued and sold by the Company and an aggregate
of 1,750,000 shares are to be sold by the Selling Shareholders in the respective
amounts set forth opposite their names in Schedule B. In addition, solely for
the purpose of covering overallotments, the Company and The Michael J. Cudahy
Charitable Foundation propose to issue and sell, at the Underwriters' option, up
to 412,500 additional shares of the Common Stock (the "Additional Shares") in
the respective amounts set forth opposite their names in Schedule C. The
Additional Shares and the Firm Shares are collectively referred to as the
"Shares." The Shares are described in the Prospectus which is referred to
below.
The Company has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively,
the "Act"), with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3, including a prospectus, relating to the
Shares, which incorporates by reference documents that the Company has filed in
accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the "Exchange
Act"). The Company has furnished to you, for use by the Underwriters and by
dealers, copies of one or more preliminary prospectuses and all documents
incorporated by reference therein (collectively, the "Preliminary Prospectus")
relating to the Shares. Except where the context otherwise
2.
<PAGE>
requires, the registration statement as in effect at the time of execution of
this Agreement or, if the registration statement is not yet effective, as
amended when it becomes effective, including all documents filed as a part
thereof or incorporated by reference therein, and including any registration
statement filed pursuant to Rule 462(b) under the Act and deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430A
under the Act, is herein called the "Registration Statement", and the
prospectus, including all documents incorporated therein by reference, in the
form filed by the Company with the Commission pursuant to Rule 424(b) under the
Act or, if no such filing is required, in the form of final prospectus included
in the Registration Statement at the time it became effective, is herein called
the "Prospectus."
The Company, the Selling Shareholders and the Underwriters agree as
follows:
1. SALE AND PURCHASE. On the basis of the representations and warranties
and the other terms and conditions herein set forth, the Company and each
Selling Shareholder, severally and not jointly, agrees to sell to the respective
Underwriters and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company and each Selling Shareholder the respective number of
Firm Shares (subject to such adjustment as you may determine to avoid fractional
shares) which bears the same proportion to the number of Firm Shares to be sold
by the Company or by that Selling Shareholder, as the case may be, as the number
of Firm Shares set forth opposite the name of such Underwriter on Schedule A
bears to the total number of Firm Shares to be sold by the Company and the
Selling Shareholders, in each case at a purchase price of $______ per Share.
You may release the Firm Shares for public sale promptly after this Agreement
becomes effective. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, on the basis of the representations and warranties and the
other terms and conditions herein set forth, the Company and the Michael J.
Cudahy Charitable Foundation hereby grant to the several Underwriters an option
to purchase, and the Underwriters shall have the right to purchase, severally
and not jointly, from the Company and the Michael J. Cudahy Charitable
Foundation all or a portion of the Additional Shares as may be necessary to
cover overallotments made in connection with the offering of the Firm Shares, at
the same purchase price per share to be paid by the several Underwriters to the
Company and the Selling Shareholders for the Firm Shares. This option may be
exercised in whole or in part from time to time on or before the thirtieth day
following the date hereof, by written notice to the Company and The Michael J.
Cudahy Charitable Foundation. Any such notice shall set forth the aggregate
number of Additional Shares as to which the option is being exercised, and the
date and time when the Additional Shares are to be delivered (any such date and
time being herein referred to as an "additional time of purchase"); provided,
however, that no additional time of purchase shall occur earlier than the time
of purchase (as defined below) nor earlier than the second business day/*/ after
the date on which the option shall have been exercised nor later than the eighth
business day after the date on which the option
- --------------------------
/*/As used herein, "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
3.
<PAGE>
shall have been exercised. The number of Additional Shares to be sold to each
Underwriter at an additional time of purchase shall be the number which bears
the same proportion to the aggregate number of Additional Shares being purchased
at such additional time of purchase as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A bears to the total number of
Firm Shares (subject, in each case, to such adjustment as you may determine to
eliminate fractional shares). The number of Additional Shares to be sold by the
Company and the Michael J. Cudahy Charitable Foundation upon exercise of the
Underwriters' option shall be 64% and 36%, respectively, of the total number of
Additional Shares being purchased.
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Firm
Shares shall be made to the Company and to the Attorney-in-fact referred to in
Section 4(d) on behalf of the Selling Shareholders by certified or official bank
checks, in immediately available funds, at the office of Dillon, Read & Co. Inc.
in New York City, against delivery of the certificates for the Firm Shares to
you for the respective accounts of the Underwriters. Such payment and delivery
shall be made at 9:30 A.M., New York City time, on ___________, 1997 (unless
another time shall be agreed to by you, the Company and the Selling Shareholders
or unless postponed in accordance with the provisions of Section 10). The time
at which such payment and delivery are actually made is called the "time of
purchase." Certificates for the Firm Shares shall be delivered to you in
definitive form in such names and in such denominations as you shall specify on
the second business day preceding the time of purchase. For the purpose of
expediting the checking of the certificates for the Firm Shares by you, the
Company and the Selling Shareholders agree to make such certificates available
to you for such purpose at least one full business day preceding the time of
purchase.
Payment of the purchase price for the Additional Shares shall be made at
the additional time of purchase in the same manner and at the same office as the
payment for the Firm Shares. Certificates for the Additional Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify on the second business day preceding the additional time of
purchase. For the purpose of expediting the checking of the certificates for
the Additional Shares by you, the Company and the Selling Shareholders agree to
make such certificates available to you for such purpose at least one full
business day preceding the additional time of purchase.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each of the Underwriters that:
(A) Each Preliminary Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act; when the Registration Statement becomes or became
effective and at all times subsequent thereto up to the time of purchase and the
additional time of purchase, the Registration Statement and the Prospectus, and
any supplements or amendments thereto, complied and will comply in all material
respects with the provisions of the Act; and the Registration Statement at all
such times did not and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus at
4.
<PAGE>
all such times did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading provided, however, that the Company makes no
representation or warranty with respect to any statement contained in the
Registration Statement or the Prospectus in reliance upon and in conformity with
information concerning the Underwriters and furnished in writing by or on behalf
of any Underwriter through you to the Company expressly for use in the
Registration Statement or the Prospectus and set forth in the section of the
Registration Statement and the Prospectus entitled "Underwriting"; the documents
incorporated by reference in the Prospectus, at the time they were filed with
the Commission, complied in all material respects with the requirements of the
Exchange Act, and (except for statements modified or superceded in a Preliminary
Prospectus or the Registration Statement) do not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(B) As of the date of this Agreement, the Company has an authorized
capitalization as set forth under the column entitled "October 31, 1996 Actual"
in the section of the Registration Statement and the Prospectus entitled
"Capitalization" and, as of the time of purchase, the capitalization of the
Company will be as set forth under the column entitled "October 31, 1996 As
Adjusted" in the section of the Registration Statement and the Prospectus
entitled "Capitalization" except to the extent the number of shares of Common
Stock has increased as a result of issuances of stock in connection with the
exercise of stock options issued under currently existing stock option plans of
the Company and any other changes that are disclosed in the Prospectus; all of
the issued and outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable (except with
respect to wage claims of employees as provided in Section 180.0622 (2)(b) of
the Wisconsin Business Corporation Law) and are free of statutory and
contractual preemptive rights pursuant to contracts to which the Company is a
party or otherwise bound.
(C) The Company has been duly organized and is validly existing as a
corporation in current status under the laws of the State of Wisconsin with full
power and authority to (i) own its properties and conduct its business as
described in the Registration Statement and the Prospectus and (ii) execute and
deliver this Agreement and to issue, sell and deliver the Shares to be issued
and sold as herein contemplated.
(D) All of the issued and outstanding shares of capital stock of each
of the subsidiaries of the Company (the "Subsidiaries") are owned directly by
the Company except such qualifying shares not exceeding 1% of the outstanding
capital stock of each Subsidiary as may be owned by third parties; all of such
shares have been duly authorized and validly issued and are fully paid and
nonassessable and, except as described in the Prospectus, are owned free and
clear of any pledge, lien, encumbrance, security interest or other claim; there
are no outstanding rights, subscriptions, warrants, calls, preemptive rights,
options or other agreements of any kind with respect to the capital stock of any
of the Subsidiaries.
5.
<PAGE>
(e) Each of the Subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its respective
jurisdiction of incorporation, with full corporate power and authority to own
its respective properties and to conduct its respective businesses.
(f) Each of the Company and each of the Subsidiaries is duly qualified
or licensed by and is in good standing in each jurisdiction in which it owns or
leases property or conducts its business and in which the failure, individually
or in the aggregate, to be so qualified or licensed could have a material
adverse effect on the properties, assets, operations, business, business
prospects or condition (financial or other) of the Company and the Subsidiaries
taken as a whole; each of the Company and each of the Subsidiaries is in
compliance in all material respects with the laws, orders, rules, regulations
and directives issued or administered by each such jurisdiction except where the
failure to be in compliance would not have a material adverse effect on the
properties, assets, operations, business, business prospects or condition
(financial or other) of the Company and the Subsidiaries taken as a whole.
(g) Neither the Company nor any of the Subsidiaries is in breach of,
or in default under (nor has any event occurred which with notice, lapse of time
or both would constitute a breach of, or default under), its charter or bylaws,
or in the performance or observance of any obligation, agreement, covenant or
condition contained in any license, indenture, lease, mortgage, deed of trust,
bank loan or credit agreement, material supply agreement or other material
agreement or instrument to which the Company or any of the Subsidiaries is a
party or by which any of them may be bound or affected where such breach or
default is likely to have a material adverse effect on the business of the
Company and the Subsidiaries, taken as a whole. The execution, delivery and
performance of this Agreement, the issuance and sale of the Shares, the
application of the net proceeds thereof as described in the Prospectus and the
consummation of the transactions contemplated hereby will not conflict with, or
result in any breach of or constitute a default under (nor constitute any event
which with notice, lapse of time or both would constitute a breach of, or
default under), the charter or bylaws of the Company or any of the Subsidiaries
or under any provision of any license, indenture, lease, mortgage, deed of
trust, bank loan or credit agreement, material supply agreement or other
material agreement or instrument to which the Company or any of the Subsidiaries
is a party or by which any of them or their properties may be bound or affected,
or under any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any of the Subsidiaries.
(h) The Firm Shares and the Additional Shares, when issued and
delivered to and paid for by the Underwriters as contemplated hereby, will be
duly authorized and validly issued and fully paid and nonassessable, and as for
the shares to be issued and sold by the Company, free and clear of any pledge,
lien, encumbrance, security interest, preemptive right or other claim (except
with respect to wage claims of employees as provided in Section 180.0622 (2)(b)
of the Wisconsin Business Corporation Law).
(i) This Agreement has been duly authorized, executed and delivered by
the Company.
6.
<PAGE>
(j) The capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and the Prospectus; and the certificates for the Shares
are in due and proper form and the holders of the Shares after making payment
therefor will not be subject to personal liability by reason of being such
holders, except with respect to wage claims of employees pursuant to Section
180.0622 (2)(b) of the Wisconsin Business Corporation Law.
(k) No approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and sale
of the Shares as contemplated hereby, other than registration of the Shares
under the Act, clearance of the offering of the Shares with the National
Association of Securities Dealers, Inc. (the "NASD") and any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters.
(l) Each person who has the right, contractual or otherwise, to cause
the Company to register pursuant to the Act any securities of the Company in
consequence of the issue and sale of the Shares to the Underwriters hereunder
either included such securities in the Registration Statement or duly waived
such right and each person who has the right, contractual or otherwise, to cause
the Company to issue to it any securities of the Company in consequence of the
issue and sale of the Shares to the Underwriters hereunder has duly waived such
right.
(m) Arthur Andersen LLP, whose reports on the consolidated financial
statements of the Company and the Subsidiaries are included or incorporated by
reference in the Registration Statement and the Prospectus, are independent
public accountants with respect to the Company as required by the Act and the
applicable published rules and regulations thereunder.
(n) All legal or governmental proceedings, contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement have been
so described or filed as required.
(o) There is no action, suit or proceeding pending or threatened
against the Company or any of the Subsidiaries or any of their properties, at
law or in equity, or before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency that
could reasonably be expected to result in a judgment, decree or order having a
material adverse effect on the properties, assets, operations, business,
business prospects or condition (financial or other) of the Company and the
Subsidiaries taken as a whole.
(p) The audited and unaudited financial statements included in the
Registration Statement and the Prospectus present fairly the consolidated
financial condition of the Company and the Subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows of the
Company and the Subsidiaries for the periods specified; such financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a
7.
<PAGE>
consistent basis during the periods involved. The unaudited financial
statements reflect all adjustments (which include any non-recurring adjustments)
necessary to present fairly the information presented for such periods.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as may be
otherwise stated in the Registration Statement or the Prospectus, there has not
been: (A) any material adverse change in the properties, assets, operations,
business, business prospects or condition (financial or other), of the Company
and the Subsidiaries taken as a whole; (B) any transaction, that is material to
the Company and the Subsidiaries taken as a whole, entered into by the Company
or any of the Subsidiaries that requires an amendment to the Registration
Statement; or (c) any obligation, contingent or otherwise, directly or
indirectly incurred by the Company or any of the Subsidiaries that is material
to the Company and the Subsidiaries taken as a whole that requires an amendment
to the Registration Statement.
(r) The Company has obtained the agreement of the persons listed on
Schedule B not to, subject to certain exceptions, sell, contract to sell, grant
any option to sell, transfer or otherwise dispose of, directly or indirectly,
any shares of Common Stock, or securities convertible into or exchangeable for
Common Stock or warrants or other rights to purchase Common Stock for a period
of 90 days from the date of the Prospectus without the prior written consent of
Dillon, Read & Co. Inc.
(s) Neither the Company nor any of the Subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), nor any federal or
state law relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case could reasonably be
expected to result in any material adverse effect on the properties, assets,
operations, business, business prospects or condition (financial or other) of
the Company and the Subsidiaries taken as a whole.
(t) Each of the Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including without limitation under any applicable
Environmental Laws, as are necessary to own, lease and operate its respective
properties and to conduct its business except where the failure to obtain a
permit could not have a material adverse effect on the business of the Company
and the Subsidiaries, taken as a whole; each of the Company and each of the
Subsidiaries has fulfilled and performed all of its material obligations with
respect to such permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such permit.
8.
<PAGE>
(u) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business, operations
and properties of the Company and the Subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including without
limitation any capital or operating expenditure required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company
reasonably has concluded that such associated costs and liabilities, singly or
in the aggregate, would not have a material adverse effect on the properties,
assets, operations, business, business prospects or condition (financial or
other) of the Company and the Subsidiaries taken as a whole.
(v) To the best of the Company's management's knowledge neither the
Company nor any of the Subsidiaries, nor any employee of the Company or any of
the Subsidiaries, has made any payment of funds of the Company or any of the
Subsidiaries prohibited by law, and no funds of the Company or any of the
Subsidiaries have been set aside to be used for any payment prohibited by law.
(w) The Company and the Subsidiaries have filed all federal or state
income or franchise tax returns required to be filed and have paid all taxes
shown thereon as due, and there is no material tax deficiency which has been or
might be asserted against the Company or any of the Subsidiaries; all material
tax liabilities are adequately provided for on the books of the Company and the
Subsidiaries.
(x) The Company has not incurred any liability for any finder's fees
or similar payments in connection with the transactions herein contemplated.
(y) The Company and the Subsidiaries have good title to all properties
and assets owned, and valid leasehold interests in all property and assets
leased by them, in each case free and clear of all material liens, security
interests, pledges, charges, encumbrances, mortgages and defects (except such as
are described or referred to in the Prospectus and the financial statements and
the notes thereto contained therein or such as do not interfere with the use
made and proposed to be made of such property by the Company and the
Subsidiaries).
(z) Neither the Company nor any of the Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or is subject to regulation under such Act.
(aa) Each of the Company and each of the Subsidiaries owns or
possesses sufficient licenses or other rights to use all patents, patent
applications, trademarks, copyrights, trade names, trade secrets, technology and
know-how necessary to conduct the Company's and the Subsidiaries' business as
described in the Registration Statement and Prospectus.
(ab) The Company is not aware of any pending or threatened action,
suit, proceeding or claim by others that the Company or any of the Subsidiaries
is infringing or otherwise violating any patents or patent applications of
others and is not aware of any rights
9.
<PAGE>
of third parties to any of the patents or patent applications owned by or
licensed to the Company or any of the Subsidiaries which could have a material
adverse effect on the use thereof by the Company or any of the Subsidiaries; and
the Company is not aware of any pending or threatened action, suit, proceeding
or claim by others challenging the validity or scope of any patents or patent
applications owned by or licensed to the Company or any of the Subsidiaries.
(ac) Each of the Company and each of the Subsidiaries has filed with
the United States Food and Drug Administration (the "FDA"), and all applicable
state and local regulatory bodies, for and received approval of all material
registrations, applications, licenses, requests for exemptions, permits and
other regulatory authorizations necessary to conduct the Company's, and the
Subsidiaries' business as it is described in the Registration Statement and
Prospectus. The Company is in compliance with all such registrations,
applications, licenses, requests for exemptions, permits and other regulatory
authorizations, and all applicable FDA, state and local rules, regulations,
guidelines and policies, including, but not limited to, applicable FDA, state
and local rules, regulations and policies relating to current good manufacturing
practices, except where the failure so to file or comply would not have a
material adverse effect on the properties, assets, operations, business,
business prospects or condition (financial or other) of the Company and the
Subsidiaries taken as a whole; and the Company has no reason to believe that any
party granting any such registration, application, license, request for
exemption, permit or other authorization intends to limit, suspend or revoke the
same and knows of no basis for any such limitation, suspension or revocation.
(ad) Each of the Company and each of the Subsidiaries is insured by
insurers of recognized financial responsibility against such losses and risks in
such amounts as are prudent and customary in the businesses in which they are
engaged; within the last two fiscal years neither the Company nor any Subsidiary
has been refused any insurance coverage sought or applied for; and neither the
Company nor any Subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not materially and adversely affect the
properties, assets, operations, business, business prospects or condition
(financial or other) of the Company and the Subsidiaries taken as a whole.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS. Each
Selling Shareholder, severally and not jointly, represents and warrants to each
Underwriter that:
(a) Such Selling Shareholder is and at the time of delivery of the
Shares to be sold by such Selling Shareholder will be the lawful owner of the
number of Shares or securities convertible into or warrants exercisable for the
number of Shares to be sold by such Selling Shareholder pursuant to this
Agreement and, at the time of delivery thereof, will have valid and marketable
title to such Shares, and upon delivery of and payment for such Shares the
Underwriters will acquire valid and marketable title to such Shares free and
clear of any claim, lien, encumbrance, security interest, marital or community
property right, restriction on transfer
10.
<PAGE>
or other defect in title, assuming each of the Underwriters has purchased the
Shares purchased by it in good faith and without notice of any adverse claim.
(b) Such Selling Shareholder has and at the time of delivery of such
Shares will have full legal right, power and capacity, and any approval required
by law to sell, assign, transfer and deliver such Shares in the manner provided
in this Agreement.
(c) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Shareholder. The Power of Attorney executed by the
Selling Shareholders (the "Power of Attorney") and the Custody Agreement among
the Selling Shareholders and Firstar Trust Company (the "Custody Agreement")
have been duly executed and delivered by or on behalf of such Selling
Shareholder and are legal, valid and binding agreements of such Selling
Shareholder, enforceable in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and general
principles of equity.
(d) Such Selling Shareholder has duly and irrevocably authorized the
Attorney-in-Fact (as defined in the Power of Attorney), on behalf of such
Selling Shareholder, to execute and deliver this Agreement and any other
document necessary or desirable in connection with the transactions contemplated
hereby and to deliver the Shares to be sold by such Selling Shareholder and
receive payment therefor pursuant hereto.
(e) The sale of the Shares by such Selling Shareholder pursuant hereto
is not prompted by any material adverse information concerning the Company not
disclosed in the Registration Statement; and all information furnished in
writing by or on behalf of such Selling Shareholder concerning the Selling
Shareholder specifically for use in the Registration Statement and the
Prospectus, and any supplement or amendment thereto, is and will be when the
Registration Statement became effective and at all times subsequent thereto up
to the time of purchase and the additional time of purchase, true and correct
and complete and at all such times did not and will not contain any untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(f) The consummation of the transactions contemplated hereby and by
the Power of Attorney and by the Custody Agreement and the fulfillment of the
terms hereof and thereof will not constitute a breach or violation of or default
under any trust, indenture, agreement or other instrument to which such Selling
Shareholder is a party or by which such Selling Shareholder is bound.
(g) To the best of the knowledge of each Selling Shareholder, the
representations and warranties of the Company set forth in Section 3 hereof are
true and correct.
5. CERTAIN COVENANTS OF THE COMPANY. The Company hereby agrees:
11.
<PAGE>
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the securities or
blue sky laws of such states as you may designate and to maintain such
qualifications in effect as long as required for the distribution of the Shares,
provided that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws of any such
state (except service of process with respect to the offering and sale of the
Shares); promptly to advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and to use its best efforts to obtain the withdrawal of any
order of suspension at the earliest practicable moment;
(b) to make available to you in New York City, as soon as practicable
after the Registration Statement becomes effective, and thereafter from time to
time to furnish to the Underwriters, as many copies of the Prospectus (or of the
Prospectus as amended or supplemented if the Company shall have made any
amendment or supplement thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes contemplated by the
Act;
(c) to advise you promptly and if requested by you to confirm such
advice in writing, (i) when the Registration Statement has become effective and
when any post-effective amendment thereto becomes effective and (ii) when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act,
if required under the Act (which the Company agrees to file in a timely manner
under such Rule);
(d) to advise you promptly, confirming such advice in writing, of any
request by the Commission for amendments or supplements to the Registration
Statement or the Prospectus or for additional information with respect thereto,
or of notice of institution of proceedings for or the entry of a stop order
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of the
Registration Statement, to use its best efforts to obtain the lifting or removal
of such order as soon as possible; to advise you promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus, including by
filing any document that would be incorporated therein by reference, and, prior
to the completion of the distribution of the Shares, to file no such amendment
or supplement to which you shall object in writing unless required by the
Exchange Act;
(e) to furnish to you and, upon request to each of the other
Underwriters, for a period of five years from the date of this Agreement (i)
copies of all reports or other communications that the Company shall send to its
shareholders or from time to time shall publish or publicly disseminate and (ii)
copies of all annual, quarterly and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the
Commission, and any other document filed by the Company pursuant to Section 12,
13, 14 or 15(d) of the Exchange Act;
(f) to advise the Underwriters promptly of the happening of any event
known to the Company within the time during which a prospectus relating to the
Shares is required to
12.
<PAGE>
be delivered under the Act that, in the reasonable judgment of the Company,
would require the making of any change in the Prospectus then being used, or in
the information incorporated therein by reference, so that the Prospectus, as
then supplemented, would not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not misleading and, during
such time, promptly to prepare and furnish, at the Company's expense, to the
Underwriters such amendments or supplements to such Prospectus as may be
necessary to reflect any such change in such quantities as requested by the
Underwriters, and to furnish to you a copy of such proposed amendment or
supplement before filing any such amendment or supplement with the Commission;
(G) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which need not be audited
and which will satisfy the provisions of Section 11(a) of the Act including, at
the option of the Company, Rule 158)
covering a period of 12 months beginning after the effective date of the
Registration Statement but ending not later than 15 months after the date of the
Registration Statement, as soon as is reasonably practicable after the
termination of such 12-month period;
(H) to furnish to you four signed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto and documents incorporated by reference therein)
and sufficient conformed copies of the foregoing (other than exhibits) for
distribution of a copy to each of the other Underwriters;
(I) to furnish to you as early as practicable prior to the time of
purchase and the additional time of purchase, as the case may be, but not later
than two business days prior thereto, a copy of the latest available unaudited
interim consolidated financial statements, if any, of the Company and the
Subsidiaries that have been read by the Company's independent certified public
accountants as stated in their letter to be furnished pursuant to Section 8(b);
(J) to apply the net proceeds from the sale of the Shares sold by the
Company in the manner set forth under the caption "Use of Proceeds" in the
Registration Statement and the Prospectus;
(K) to use its best efforts to cause the Shares to be included in the
Nasdaq National Market;
(L) whether or not the transactions contemplated in this Agreement
are consummated or this Agreement otherwise becomes effective or is terminated,
to pay its pro rata share with the Selling Shareholders of all expenses, fees
and taxes (other than (x) any transfer taxes and (y) fees and disbursements of
your counsel except as set forth under Section 7 and clauses (iv) and (vi)
below) in connection with (i) the preparation and filing of the Registration
Statement, each Preliminary Prospectus, the Prospectus and any amendment or
supplement thereto, and the printing and furnishing of copies of each thereof to
you and to dealers (including costs of mailing and shipment), (ii) the issuance,
sale and delivery of the Shares, (iii) the printing of this Agreement and any
dealer agreements, and
13.
<PAGE>
the reproduction or printing and furnishing of copies of each thereof to you and
to dealers (including costs of mailing and shipment), (iv) the qualification of
the Shares for offering and sale under state laws as aforesaid (including legal
fees and filing fees and other disbursements of your counsel) and the printing
and furnishing of copies of any blue sky surveys to you and to dealers, (v) any
listing of the Shares on any securities exchange or qualification of the Shares
for inclusion in the Nasdaq National Market and any registration thereof under
the Exchange Act, (vi) any filing for review of the public offering of the
Shares by the NASD and (vii) the performance of the Company's and the Selling
Shareholders' other obligations hereunder;
(m) not to sell, contract to sell, grant any option to sell, transfer
or otherwise dispose of, directly or indirectly, any shares of Common Stock or
securities convertible into or exchangeable for Common Stock or warrants or
other rights to purchase Common Stock or permit the registration under the Act
of any shares of Common Stock, except for (i) the registration of the Shares and
the sales to you pursuant to this Agreement for a period commencing on the date
hereof and continuing for 90 days after the date of the Prospectus; (ii) grants
of stock options under the Company's existing employee stock option plan; or
(iii) issuances of shares upon exercise of employee stock options, without the
prior written consent of Dillon, Read & Co. Inc.; and
(n) to refrain from investing the proceeds from the sale of the Shares
in a manner to cause the Company or any of the Subsidiaries to become an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
6. CERTAIN COVENANTS OF THE SELLING SHAREHOLDERS. Each Selling
Shareholder agrees with each Underwriter that:
(a) such Selling Shareholder will not, subject to certain exceptions,
sell, contract to sell, grant any option to sell, transfer or otherwise dispose
of, directly or indirectly, any shares of Common Stock or securities convertible
into or exchangeable for Common Stock or warrants or other rights to purchase
Common Stock, except for the sales to you pursuant to this Agreement, for a
period commencing on the date hereof and continuing for 90 days after the date
of the Prospectus, without the prior written consent of Dillon, Read & Co. Inc.;
and
(b) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement otherwise becomes effective or is terminated, to
pay its pro rata share with the Company of all expenses, fees and taxes (other
than (x) any transfer taxes and (y) fees and disbursements of your counsel
except as set forth under Section 7 and clauses (iv) and (vi) below) in
connection with (i) the preparation and filing of the Registration Statement,
each Preliminary Prospectus, the Prospectus and any amendment or supplement
thereto, and the printing and furnishing of copies of each thereof to you and to
dealers (including costs of mailing and shipment), (ii) the issuance, sale and
delivery of the Shares, (iii) the printing of this Agreement and any dealer
agreements, and the reproduction or printing and furnishing of copies of each
thereof to you and to dealers (including costs of mailing and shipment), (iv)
the qualification of the Shares for offering and sale under state laws as
aforesaid (including legal fees and filing fees and other disbursements of your
counsel) and the printing and furnishing of copies of any blue sky surveys to
you and to dealers, (v) any listing of the Shares on any securities
14.
<PAGE>
exchange or qualification of the Shares for inclusion in the Nasdaq National
Market and any registration thereof under the Exchange Act, (vi) any filing for
review of the public offering of the Shares by the NASD and (vii) the
performance of the Company's and the Selling Shareholders' other obligations
hereunder;
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Firm Shares are not
delivered for any reason, other than the failure of the Underwriters to purchase
the Firm Shares as provided herein (unless such failure is permitted under the
provisions of Section 8 of this Agreement), the Company will reimburse the
Underwriters for all of their out-of-pocket expenses, including the fees and
disbursements of their counsel. If the Additional Shares are not delivered for
any reason, other than the failure of the Underwriters to purchase the
Additional Shares as provided herein (unless such failure is permitted under the
provisions of Section 8 of this Agreement), the Company will reimburse the
Underwriters for a percentage of the Underwriters' out-of-pocket expenses,
including the fees and disbursements of their counsel, equal to the percentage
of the Shares represented by the Additional Shares as to which the Underwriters
exercised their option pursuant to Section 1 of this Agreement.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Shareholders on the
date hereof and at the time of purchase (and the several obligations of the
Underwriters at any additional time of purchase are subject to the accuracy of
the representations and warranties on the part of the Company and the Selling
Shareholders on the date hereof and at the time of purchase and at such
additional time of purchase, as the case may be), the performance by each of the
Company and the Selling Shareholders of their obligations hereunder and to the
following conditions:
(a) The Company shall furnish to you at the time of purchase and at
such additional time of purchase, as the case may be, the opinions of
Schoenberg, Fisher & Newman, Ltd., counsel for the Company and the Selling
Shareholders (except for GE Fund), and _________________, counsel for GE Fund
(and whose opinion shall be delivered only with respect to items (xiii), (xiv),
(xv), (xvi), and (xvii) below as they relate to GE Fund) addressed to the
Underwriters and dated the time of purchase or such additional time of purchase,
as the case may be, with reproduced copies for each of the other Underwriters
and in form satisfactory to Cooley Godward LLP, counsel for the Underwriters,
stating that:
(i) the Company has been duly incorporated and is validly existing as
a corporation in current status under the laws of the State of Wisconsin, with
full corporate power and authority (A) to own its properties and conduct its
business as described in the Registration Statement and the Prospectus and (B)
to execute and deliver this Agreement and to issue, sell and deliver the Shares
as herein contemplated;
(ii) each of Corometrics Medical Systems, Inc., E for M Corporation,
Hellige GmbH and Vari-X Corporation (each a "Material Subsidiary" and
collectively, the "Material Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the state
in which such Subsidiary is incorporated, with full corporate power and
authority to own its properties and to conduct its business as described in the
Registration Statement and the Prospectus;
15.
<PAGE>
(III) each of the Company and each of the Material Subsidiaries is
duly qualified or licensed to do business by and is in good standing as a
foreign corporation in each jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification and where any
statutory fines or penalties or any corporate disability imposed for failure to
qualify would have a material adverse effect on the properties, assets,
operations, business, business prospects or condition (financial or other) of
the Company and the Subsidiaries taken as a whole;
(IV) all of the issued and outstanding shares of capital stock of
each Material Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable and, except as set forth in the Prospectus, are
owned, directly or indirectly, by the Company free and clear of any pledge,
lien, encumbrance, security interest, preemptive right or other claim, and, to
such counsel's knowledge, there are no rights, warrants, options or other
agreements to acquire or instruments convertible into or exchangeable for any
shares of capital stock or other equity interest of any Subsidiary, except as
set forth in the Prospectus;
(V) this Agreement has been duly authorized, executed and delivered
by the Company;
(VI) (a) the Shares, when delivered to and paid for by the
Underwriters, will be duly authorized, validly issued, fully paid and
nonassessable, and will be free of any pledge, lien, encumbrance, claim or
preemptive right (except with respect to wage claims of employees as provided
in Section 180.0622 (2)(b) of the Wisconsin Business Corporation Law); and (b)
the certificates for the Shares are in due and proper form and the holders of
the Shares will not be subject to personal liability by reason of being such
holders;
(VII) (a) the Company has an authorized capital as set forth under the
heading "Capitalization" in the Registration Statement and the Prospectus, and
(b) the outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid, nonassessable and free of
statutory and, to such counsel's knowledge, preemptive rights (except with
respect to wage claims of employees as provided in Section 180.0622 (2)(b) of
the Wisconsin Business Corporation Law);
16.
<PAGE>
(VIII) the execution, delivery and performance of this Agreement by
the Company, the issuance and sale of the Shares, the application of the net
proceeds thereof as described in the Prospectus and the consummation by the
Company of the transactions contemplated hereby do not and will not conflict
with, or result in any breach of, or constitute a default under (nor constitute
any event which with notice, lapse of time or both would constitute a breach of
or default under), the charter or bylaws of the Company or any of the Material
Subsidiaries; or any provision of any material license, indenture, lease,
mortgage, deed of trust, bank loan or credit agreement or other agreement or
instrument known to such counsel to which the Company or any of the Subsidiaries
is a party or by which the Company or any of the Subsidiaries or their
properties are bound or affected; or under any federal, state, local or foreign
law, regulation or rule or any decree, judgment or order applicable to the
Company or any of the Subsidiaries except where such conflict would not have a
material adverse effect on the business of the Company and the Subsidiaries,
taken as a whole (such counsel need express no opinion as to any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters).
(IX) to such counsel's knowledge, neither the Company nor any of the
Subsidiaries is in breach of or in default under (nor has any event occurred
which with notice, lapse of time or both would constitute a breach of or default
under) any license, indenture, lease, mortgage, deed of trust, bank loan or
credit agreement or any other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries or their properties are bound or affected or under any law,
regulation or rule or any decree, judgment or order applicable to the Company or
any of the Subsidiaries, except for such matters as could not, individually or
in the aggregate, have a material adverse effect on the properties, assets,
operations, business, business prospects or condition (financial or other) of
the Company and the Subsidiaries taken as a whole.
17.
<PAGE>
(X) except as described in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings of which such counsel has
knowledge pending or threatened against the Company or any of the Subsidiaries,
or any of their respective properties, at law or in equity, or before or by any
federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency that individually or in the aggregate could result in
a judgment, decree or order having a material adverse effect on the properties,
assets, operations, business, business prospects or condition (financial or
other) of the Company and the Subsidiaries taken as a whole.
(XI) the documents incorporated by reference in the Registration
Statement and Prospectus, when they were filed (or, if an amendment with respect
to any such document was filed, when such amendment was filed), complied as to
form in all material respects with the Exchange Act (except as to the financial
statements and schedules contained or incorporated by reference therein, as to
which such-counsel need express no opinion);
(XII) to such counsel's knowledge, each person who has the right,
contractual or otherwise, to cause the Company to register pursuant to the Act
any securities of the Company in consequence of the issue and sale of the Shares
to the Underwriters hereunder either included such securities in the
Registration Statement or duly waived such right and each person who has the
right, contractual or otherwise, to cause the Company to issue to it any
securities of the company in consequence of the issue and sale of the Shares to
the Underwriters hereunder has duly waived such right;
(XIII) this Agreement, the Power of Attorney and the Custody Agreement
have been duly executed and delivered by each of the Selling Shareholders; the
Power of Attorney and the Custody Agreement are legal, valid and binding
agreements of each of the Selling Shareholders enforceable in accordance with
their respective terms, except as the
18.
<PAGE>
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and general
principles of equity;
(XIV) each of the Selling Shareholders has full legal right and
power, and has obtained any authorization or approval required by law (other
than those imposed by the Act and the securities or blue sky laws of certain
jurisdictions), to sell, assign, transfer and deliver the Shares to be sold by
such Selling Shareholder in the manner provided in this Agreement;
(XV) delivery of certificates for the Shares to be sold by the
Selling Shareholders pursuant hereto will pass title thereto to the Underwriters
severally, free and clear of any claim, lien, encumbrance, security interest,
community property right, restriction on transfer or other defect in title
assuming that the several Underwriters are good faith purchasers for value and
without notice of any adverse claim;
(XVI) to such counsel's knowledge, the consummation of the
transactions contemplated hereby and by the Power of Attorney and the Custody
Agreement and the fulfillment of the terms hereof and thereof will not
constitute a breach or violation of or default under any trust, indenture,
agreement or other instrument to which any of the Selling Shareholders is a
party or by which any of the Selling Shareholders is bound.
(XVII) the Attorney-in-Fact has been duly authorized by each Selling
Shareholder to execute and deliver on behalf of each Selling Shareholder this
Agreement and any other document necessary or desirable in connection with the
transactions contemplated hereby and to deliver the Shares to be sold by the
Selling Shareholders and receive payment therefor pursuant hereto;
In addition, such counsel's opinion shall state that nothing has come
to the attention of such counsel that causes them to believe that the
Registration Statement or any amendment thereto at the time such Registration
Statement or amendment became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus or any supplement thereto at the date of such Prospectus or such
supplement, and at all times up to and including the time of purchase contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements, schedules, financial data and statistical information
included in the Registration Statement or Prospectus).
(b) The Company shall furnish to you at the time of purchase and at
such additional time of purchase, as the case may be, an opinion of Foley &
Lardner, counsel for the Company, addressed to the Underwriters and dated the
time of purchase or such additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form satisfactory to
Cooley Godward LLP, counsel for the Underwriters, stating that:
19.
<PAGE>
(I) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and the Prospectus;
(II) the Registration Statement and the Prospectus (except as to the
financial statements and schedules contained or incorporated by reference
therein as to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act;
(III) the Registration Statement has become effective under the Act
and, to such counsel's knowledge, no stop order proceedings with respect thereto
are pending or threatened under the Act;
(IV) no approval, authorization, consent or order of or filing with
any federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency is required in connection with the issuance or
sale of the Shares as contemplated hereby other than registration of the Shares
under the Act (except such counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriters);
(V) the statements in the Registration Statement and the Prospectus
under the captions "Risk Factors -- Product Liability," Risk Factors --
Government Regulation," "Risk Factors -- Anti-takeover Provisions," Business --
Product Liability and Insurance" "Business -- Government Regulations" and Item
15 of the Registration Statement, insofar as they are descriptions of laws,
regulations and rules, of legal and governmental proceedings or of contracts,
agreements, leases and other legal documents, or refer to statements of law or
legal conclusions, have been reviewed by such counsel and fairly summarize such
matters in all material respects;
(VI) neither the Company nor any of the Subsidiaries is an "investment
company" or a person "controlled" by an "investment company" within the meaning
of the Investment Company Act off 1940, as amended;
(VII) no approval, authorization, consent or order of or filing with
any federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency is required in connection with the sale of the
Shares to be sold by the Selling Shareholders as contemplated hereby other than
registration of the Shares under the Act (except such counsel need express no
opinion as to any necessary qualification under the state securities or blue sky
laws of the various jurisdictions in which the Shares are being offered by the
Underwriters); and
(VIII) all contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement have been so described or filed.
20.
<PAGE>
In addition, such counsel's opinion shall state that nothing has come
to the attention of such counsel that causes them to believe that the
Registration Statement or any amendment thereto at the time such Registration
Statement or amendment became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus or any supplement thereto at the date of such Prospectus or such
supplement, and at all times up to and including the time of purchase contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements, schedules, financial data and statistical information
included in the Registration Statement or Prospectus).
(C) You shall have received from Arthur Andersen LLP letters dated,
respectively, the date of this Agreement and the time of purchase and additional
time of purchase, as the case may be, and addressed to the Underwriters (with
reproduced copies for each of the Underwriters) in form and substance
satisfactory to you.
(D) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, opinions from Cooley Godward
LLP in form and substance satisfactory to you.
(E) No amendment or supplement to the Registration Statement or the
Prospectus, including documents deemed to be incorporated by reference therein,
shall be filed prior to the time the Registration Statement becomes effective to
which you shall have objected in writing.
(F) The Registration Statement shall become effective at or before
5:00 P.M., New York City time, on the date of this Agreement and, if Rule 430A
under the Act is used, the Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act at or before 5:00 P.M., New York City
time, on the second full business day after the date of this Agreement;
provided, however, that the Company, the Selling Shareholders and you and any
group of Underwriters, including you, who have agreed hereunder to purchase in
the aggregate at least 50% of the Firm Shares from time to time may agree in
writing or by telephone, confirmed in writing, on a later date.
(G) Prior to the time of purchase or the additional time of purchase,
as the case may be: (i) no stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Act or proceedings
initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement
and all amendments thereto, or modifications thereof, if any, shall not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
and (iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
21.
<PAGE>
(H) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, there has not
been: (i) any material and adverse change in the properties, assets, operations,
business, business prospects or condition (financial or other) of the Company
and the Subsidiaries taken as a whole, other than as described in the
Registration Statement and the Prospectus; (ii) any transaction that is material
to the Company and the Subsidiaries taken as a whole entered into by the Company
or any of the Subsidiaries, other than as described in the Registration
Statement and the Prospectus; or (iii) any obligation, contingent or otherwise,
directly or indirectly, incurred by the Company or any of the Subsidiaries that
is material to the Company and the Subsidiaries taken as a whole, other than as
described in the Registration Statement and the Prospectus.
(I) The Company, at the time of purchase or additional time of
purchase, as the case may be, will deliver to you a certificate of two of its
executive officers to the effect that the representations and warranties of the
Company as set forth in this Agreement are true and correct as of each such date
and the conditions set forth in Section 8(f) and Section 8(g) have been met.
(J) You shall have received a signed letter, dated the date of this
Agreement, from each of the shareholders listed in Schedule B to the effect that
such persons shall not, subject to certain exceptions, sell, contract to sell,
grant any option to sell, transfer or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exchangeable for Common Stock or warrants or other rights to purchase Common
Stock for a period of 90 days from the date of the Prospectus without the prior
written consent of Dillon, Read & Co. Inc.
(K) The Company and the Selling Shareholders shall have furnished to
you such other documents and certificates as to the accuracy and completeness of
any statement in the Registration Statement or the Prospectus as of the time of
purchase and the additional time of purchase, as the case may be, as you
reasonably may request.
(L) The Company and the Selling Shareholders shall have performed such
of their respective obligations under this Agreement as are to be performed by
the terms hereof at or before the time of purchase and at or before the
additional time of purchase, as the case may be.
(M) The Shares shall have been approved for quotation through the
Nasdaq National Market.
(N) Each of the Selling Shareholders, at the time of purchase or
additional time of purchase, as the case may be, shall have delivered to you a
certificate (which may be signed by the Attorney-in-Fact) to the effect that
such Selling Shareholder is not aware that any of the representations and
warranties of the Selling Shareholders as set forth in this Agreement are not
true and correct as of such date.
22.
<PAGE>
9. EFFECTIVE DATE OF AGREEMENT; TERMINATION.
(A) This Agreement shall become effective (i) if Rule 430A under the
Act is not used, when you shall have received notification of the effectiveness
of the Registration Statement, or (ii) if Rule 430A under the Act is used, when
the parties hereto have executed and delivered this Agreement.
(B) The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or any group of
Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the Firm Shares if, at any time prior to the time of
purchase or, with respect to the purchase of any Additional Shares, the
additional time of purchase, as the case may be, trading in securities on the
New York Stock Exchange shall have been suspended or minimum prices shall have
been established on the New York Stock Exchange or if a banking moratorium shall
have been declared either by the United States or New York State authorities, or
if the United States shall have declared war in accordance with its
constitutional processes or there shall have occurred any material outbreak or
escalation of hostilities or other national or international calamity or crisis
of such magnitude in its effect on, or any material adverse change in, any
financial market which, in each case, in your judgment or in the judgment of
such group of Underwriters, makes it impracticable to market the Shares. If you
or any group of Underwriters elect to terminate this Agreement as provided in
this Section 9(b), the Company and each other Underwriter shall be notified
promptly by letter or telegram.
(C) If any Underwriter shall default in its obligation to take up and
pay for the Firm Shares to be purchased by it hereunder and if the number of
Firm Shares which all Underwriters so defaulting shall have agreed but failed to
take up and pay for does not exceed 10% of the total number of Firm Shares, the
non-defaulting Underwriters shall take up and pay for (in addition to the
aggregate principal amount of Firm Shares they are obligated to purchase
pursuant to Section 1) the number of Firm Shares agreed to be purchased by all
such defaulting Underwriters as hereinafter provided. Such Shares shall be
taken up and paid for by such non-defaulting Underwriter or Underwriters in such
amount or amounts as you may designate with the consent of each Underwriter so
designated or, in the event no such designation is made, such Shares shall be
taken up and paid for by all non-defaulting Underwriters pro rata in proportion
to the aggregate number of Firm Shares set opposite the names of such non-
defaulting Underwriters in Schedule A.
(D) If any Underwriter shall default in its obligation to take up and
pay for the Firm Shares to be purchased by it hereunder and if the number of
Firm Shares which all Underwriters so defaulting shall have agreed but failed to
take up and pay for exceeds 10% of the total number of Firm Shares, and
arrangements satisfactory to you and the Company are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of the Company, any Selling Shareholder or any non-defaulting Underwriter.
(E) Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any
23.
<PAGE>
Firm Shares hereunder unless all of the Firm Shares are purchased by the
Underwriters (or by substituted underwriters selected by you with the approval
of the Company or selected by the Company with your approval pursuant to Section
9(c)). If a new Underwriter or Underwriters are substituted for a defaulting
Underwriter or Underwriters in accordance with Section 9(d), the Company or you
shall have the right to postpone the time of purchase for a period, not
exceeding five business days in order that any necessary change in the
Registration Statement and the Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and include any
Underwriter substituted under this Section 9 with like effect as if such
substituted Underwriter had originally been named in Schedule A.
(F) If the purchase of the Shares by the Underwriters, as contemplated
by this Agreement, is not consummated for any reason permitted under this
Agreement or if such purchase is not consummated because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 5(l), 7 and 10), and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to the
extent provided in Section 10).
10. INDEMNITY BY THE COMPANY, THE SELLING SHAREHOLDERS AND THE
UNDERWRITERS.
(A) The Company and each of Michael J. Cudahy and Frederick G. Luber
(the "Indemnifying Selling Shareholders"), jointly and severally, agree to
indemnify, defend and hold harmless each Underwriter, each person that controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and each Underwriter's agents, employees, officers and directors
and the agents, employees, officers and directors of any such controlling person
(collectively, the "Underwriter indemnified parties") from and against any and
all losses, claims, damages, judgments, liabilities and expenses (including the
fees and expenses of counsel and other expenses in connection with
investigating, defending or settling any such action or claim) which, jointly or
severally, any Underwriter indemnified party may incur as they are incurred (and
regardless of whether such Underwriter indemnified party is a party to the
litigation, if any) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement
relating to the Shares or the Prospectus or any Preliminary Prospectus, or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
judgments, liabilities or expenses arise out of, or are based upon, any such
untrue statement or omission or alleged untrue statement or omission based upon
and in conformity with information with respect to any Underwriter furnished in
writing by any Underwriter through you to the Company expressly for use therein
with reference to such Underwriter; provided, however, that no Selling
Shareholder shall be liable under this Section 10 in an amount exceeding the
total price at which the Shares sold by such Selling Shareholder were offered to
the public. This indemnity agreement will be in addition to any liability the
Company or the Selling Shareholders otherwise may have. The indemnity agreement
contained in this subsection (a) with respect to any Preliminary Prospectus or
amended Preliminary Prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter)
24.
<PAGE>
from whom the person asserting any such loss, expense, liability or claim
purchased the Shares which is the subject thereof if the Prospectus corrected
any such alleged untrue statement or omission and if such Underwriter failed to
send or give a copy of the Prospectus to such person at or prior to the written
confirmation of the sale of such Shares to such person.
(B) Each Selling Shareholder agrees to indemnify and hold harmless the
Company, each of its directors and each of its officers who signs the
Registration Statement, and each person, if any, controlling the Company within
the meaning of the Act or the Exchange Act to the same extent as the foregoing
indemnity from the Company and the Indemnifying Selling Shareholders to each
Underwriter set forth in paragraph (a) of this Section, but only with respect to
information relating to such Selling Shareholder furnished in writing by such
Selling Shareholder for use in connection with the Registration Statement or the
Prospectus. In case any claim shall be brought or asserted against the Company,
its directors, such officers or any such controlling person, in respect of which
indemnity may be sought against any Selling Shareholder, such Selling
Shareholder shall have the rights and duties given to the Company, and the
Company, such directors or officers and any such controlling person shall have
the rights and duties given to the Underwriters by paragraph (a) of this
Section.
(C) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
Underwriter indemnified party, with respect to which indemnity may be sought
against the Company or any Selling Shareholder pursuant to this Section 10, such
Underwriter indemnified party shall promptly notify the Company and each Selling
Shareholder in writing, and the Company and the Selling Shareholders shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to the Underwriter indemnified party and payment of all fees and
expenses; provided that the omission so to notify the Company and the Selling
Shareholders shall not relieve them from any liability that they may have to any
Underwriter indemnified party. An Underwriter indemnified party shall have the
right to employ separate counsel in any such action or proceeding and to assume
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter indemnified party unless (i) the employment of such
counsel has been authorized in writing by the Company or the Selling
Shareholders, (ii) the Company and the Selling Shareholders have failed promptly
to assume the defense and employ Counsel satisfactory to the Underwriter
indemnified party; or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both the Underwriter indemnified party
and the Company or the Selling Shareholders and such Underwriter indemnified
party shall have reasonably concluded that there may be one or more legal
defenses available to it that are different from or additional to those
available to the Company and the Selling Shareholders (in which case the Company
and the Selling Shareholders shall not have the right to assume the defense of
such action on behalf of such Underwriter indemnified party), in any of which
events such fees and expenses shall be borne by the Company and the Selling
Shareholders and reimbursed as they are incurred. It is understood, however,
that the Company and the Selling Shareholders shall not, in connection with any
one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
25.
<PAGE>
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) at any time for all such
Underwriter indemnified parties, which firm shall be designated in writing by
Dillon, Read & Co. Inc., and that all such fees and expenses shall be reimbursed
as they are incurred. The Company and the Selling Shareholders shall not be
liable for any settlement of any such action effected without the written
consent of the Company or the Selling Shareholders (which consent shall not be
unreasonably withheld or delayed), but if settled with the written consent of
the Company or the Selling Shareholders, or if there is a final judgment with
respect thereto, the Company and the Selling Shareholders agree to indemnify and
hold harmless each Underwriter indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(D) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement,
and any person that controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act (collectively, the "Company indemnified
parties") and each Selling Shareholder to the same extent as the foregoing
indemnity from the Company and the Selling Shareholders to the Underwriter
indemnified parties, but only with respect to information concerning such
Underwriter furnished in writing by or on behalf of such Underwriter through you
to the Company expressly for use with respect to such Underwriter in the
Registration Statement, any Preliminary Prospectus or the Prospectus. In case
any action shall be brought against any Company indemnified party or any Selling
Shareholder based on the Registration Statement, any Preliminary Prospectus or
the Prospectus and in respect of which indemnity may be sought against any
Underwriter pursuant to this Section 10(d), such Underwriter shall have the
rights and duties given to the Company and the Selling Shareholders by Section
10(c) (except that if the Company and the Selling Shareholders shall have
assumed the defense thereof such Underwriter shall not be required to do so, but
may employ separate counsel therein and participate in the defense thereof,
provided that the fees and expenses of such separate counsel shall be at the
expense of such Underwriter), and the Company indemnified parties and the
Selling Shareholders shall have the rights and duties given to the Underwriter
indemnified parties by Section 10(c).
(E) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless any Underwriter indemnified
party or any Company indemnified party or any Selling Shareholder, then the
party required to indemnify such indemnified party under this Section 10, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, judgments, liabilities and expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other hand from
the offering of the Shares, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Selling Shareholders on the one
hand and the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Shareholders on the one hand
and the
26.
<PAGE>
Underwriters on the other hand shall be deemed to be in the same proportion as
the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and the
Selling Shareholders bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company and the Selling
Shareholders on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company, by the
Selling Shareholders or by the Underwriters, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, judgments, liabilities and expenses referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any claim
or action.
The Company, the Selling Shareholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 10(e)
were determined by pro rata allocation or by any other method of allocation
(even if the Underwriters were treated as one entity for such purpose) that does
not take account of the equitable considerations referred to in this Section
10(e). Notwithstanding the provisions of this Section 10(e), no Underwriter
indemnified party shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by such
Underwriter indemnified party and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter indemnified
party otherwise has been required to pay by reason of such untrue statement or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 10 are several in proportion to their respective
underwriting commitments and are not joint.
The statements under the caption "Underwriting" in the Prospectus (to the
extent such statements relate to an Underwriter) constitute the only information
furnished to the Company in writing by such Underwriter expressly for use in the
Registration Statement, any Preliminary Prospectus or the Prospectus.
(F) The indemnity and contribution agreements contained in this
Section 10 and the representations, warranties and covenants of the Company and
the Selling Shareholders contained in this Agreement shall remain in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter indemnified party or by or on behalf of any Company indemnified
party or any Selling Shareholder, and shall survive any termination of this
Agreement or the issuance and delivery of the Shares. Subject to the provisions
of Section 10(c) and Section 10(d), the Company, each Selling Shareholder and
each Underwriter agree promptly to notify the other of the commencement of any
litigation or proceeding against it in connection with the issuance and sale of
the Shares or in connection with the Registration Statement or the Prospectus.
27.
<PAGE>
11. NOTICES. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
Dillon, Read & Co. Inc., 535 Madison Avenue, New York, New York 10022,
Attention: Syndicate Department; if to the Company, shall be sufficient in all
respects if delivered or sent to the Company at the offices of the Company at
8200 West Tower Avenue, Milwaukee, Wisconsin 53223, Attention: Chief Financial
Officer; and if to the Selling Shareholders, shall be sufficient in all
respects, if delivered or sent to Michael J. Cudahy at the offices of the
Company at 8200 West Tower Avenue, Milwaukee, Wisconsin 53223.
12. CONSTRUCTION. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS AGREEMENT HAVE BEEN INSERTED
AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS AGREEMENT.
13. PARTIES AT INTEREST. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company, the Selling
Shareholders, the Underwriter indemnified parties and the Company indemnified
parties, and their respective successors, assigns, executors and administrators.
No other person, partnership, association or corporation (including a purchaser,
as such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of this Agreement.
14. COUNTERPARTS. This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement among
the parties.
28.
<PAGE>
If the foregoing correctly sets forth the understanding among the Company,
the Selling Shareholders and the Underwriters, please so indicate in the space
provided below for such purpose, whereupon this letter and your acceptance shall
constitute a binding agreement among the Company, the Selling Shareholders and
the Underwriters, severally.
Very truly yours,
MARQUETTE MEDICAL SYSTEMS, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
THE SELLING SHAREHOLDERS NAMED IN SCHEDULE B
ATTACHED HERETO
By:_________________________________
Attorney-in-fact
Accepted and agreed to as of the date
first above written, on behalf of
themselves, Bear, Stearns & Co. Inc.
and Robert W. Baird & Co. Incorporated
and the other several Underwriters named
in Schedule A
DILLON, READ & CO. INC., as
Managing Underwriter
By:________________________________
Name:______________________________
Title:_____________________________
29.
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITER FIRM SHARES
- ------------------------------------ -------------
<S> <C>
Dillon, Read & Co. Inc..............
Bear, Stearns & Co. Inc.............
Robert W. Baird & Co. Incorporated..
----------
Total 2,750,000
==========
</TABLE>
30.
<PAGE>
SCHEDULE B
<TABLE>
<CAPTION>
NUMBER OF
FIRM SHARES
NAME TO BE SOLD
- ----------------------------- -------------
<S> <C>
Michael J. Cudahy 1,000,000
GE Fund 489,485
Frederick G. Luber 100,000
Frederick A. Robertson 23,001
R. Thomas Divers 80,000
Donald Holt 57,514
--------------
Total 1,750,000
==============
</TABLE>
31.
<PAGE>
SCHEDULE C
NUMBER OF
ADDITIONAL
SHARES TO BE
NAME SOLD
- ----------------------------------------------- ------------
Marquette Medical Systems, Inc. 262,500
Michael J. Cudahy Charitable Foundation 150,000
------------
Total 412,500
============
32.
<PAGE>
BY-LAWS
OF MARQUETTE MEDICAL SYSTEMS, INC.
(Formerly Known as Marquette Electronics, Inc.)
(AS AMENDED AND RESTATED AS OF JANUARY 8, 1996)
ARTICLE I
---------
OFFICES
-------
The principal office of the corporation in the State of Wisconsin shall be
located in the City of Milwaukee, County of Milwaukee. The corporation may have
such other offices, either within or without the State of Wisconsin, as the
Board of Directors may designate or as the business of the corporation may
require from time to time.
The registered office of the corporation required by the Wisconsin Business
Corporation Law to be maintained in the State of Wisconsin may be, but need not
be, identical with the principal office in the State of Wisconsin, and the
address of the registered office may be changed from time to time by the Board
of Directors.
ARTICLE II
----------
SHAREHOLDERS
------------
Section 1 -- Annual Meeting.
--------- --------------
The annual meeting of the shareholders for the election of directors and
for the transaction of such other business as may properly be brought before the
meeting shall be held at such time as is specified in the notice of the meeting
on either the first Friday in July of each year or on such other date as may be
fixed by the Board of Directors of the corporation prior to the giving of the
notice of the meeting. The Board of Directors acting by resolution may postpone
or reschedule any annual meeting of shareholders.
Nominations of persons for election to the Board of Directors of the
corporation and the proposal of business to be considered by the shareholders
may be made at an annual meeting of shareholders (a) pursuant to the
corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any shareholder of the corporation who was a shareholder of
record at the time of giving of notice provided for in this By-Law, who is
entitled to vote at the meeting and who complied with the notice procedures set
forth in this By-Law.
<PAGE>
For nominations or other business to be properly brought before an annual
meeting by a shareholder pursuant to clause (c) of the foregoing paragraph of
this By-Law, the shareholder must have given timely notice thereof in writing to
the Secretary of the corporation. To be timely, a shareholder's notice shall be
delivered to the Secretary at the principal executive offices of the corporation
not less than 75 days nor more than 100 days prior to the first anniversary of
the preceding year's annual meeting; provided, however, that in the event that
the date of the annual meeting is advanced by more than 30 days or delayed by
more than 60 days from such anniversary date, notice by the shareholder to be
timely must be so delivered not earlier than the 100th day prior to such annual
meeting and not later than the close of business on the later of the 75th day
prior to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made. Such shareholder's
notice shall set forth (a) as to each person whom the shareholder proposes to
nominate for election or reelection as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected); (b) as to
any other business that the shareholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such shareholder and the beneficial owner, if any, on whose
behalf the proposal is made; (c) as to the shareholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made (i)
the name and address of such shareholder, as they appear on the corporation's
books, and of such beneficial owner and (ii) the class and number of shares of
the corporation which are owned beneficially and of record by such shareholder
and such beneficial owner.
Notwithstanding anything in the second sentence of the preceding paragraph
to the contrary, in the event that the number of directors to be elected to the
Board of Directors of the corporation is increased and there is no public
announcement naming all of the nominees for Director or specifying the size of
the increased Board of Directors made by the corporation at least 85 days prior
to the first anniversary of the preceding year's annual meeting, a shareholder's
notice required by this By-Law shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive offices of the
corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the corporation.
2
<PAGE>
Only such persons who are nominated in accordance with the procedures set
forth in these By-laws shall be eligible to serve as directors and only such
business shall be conducted at an annual meeting of shareholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this By-Law. The chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made in accordance with the procedures set forth in this By-Law and,
if any proposed nomination or business is not in compliance with this By-Law, to
declare that such defective proposal shall be disregarded.
For purposes of this By-Law, "public announcement" shall mean disclosure in
a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Sections 13,
14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this By-Law, a shareholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
By-Law. Nothing in this By-Law shall be deemed to affect any rights of
shareholders to request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
Section 2 -- Special Meetings.
--------- ----------------
Special meetings of the shareholders for any purpose or purposes shall be
called to be held at any time upon the request of the President, a majority of
the members of the Board of Directors or of the Executive Committee then in
office or upon the written request of the holders of not less than ten (10%)
percent of all outstanding shares of the corporation. Business transacted at
all special meetings shall be confined to the specific purpose or purposes of
the persons authorized to request such special meeting as set forth in this
Section 2 and only such purpose or purposes will be set forth in the notice of
the meeting. The Board of Directors acting by resolution may postpone or
reschedule any previously scheduled special meeting of shareholders.
Nominations of persons for election to the Board of Directors may be made
at a special meeting of shareholders at which directors are to be elected (a)
pursuant to the corporation's notice of meeting, (b) by or at the direction of
the Board of Directors or (c) by any shareholder of the corporation who is a
shareholder of record at the time of giving of notice provided for in this By-
Law, who shall be entitled to vote at the meeting and who complies with the
notice procedures set forth in this By-Law. Nominations by shareholders of
persons for election to the Board of Directors may be made at such a special
meeting of shareholders if
3
<PAGE>
the shareholder's notice required by the third paragraph of Section 1 of Article
I of these By-Laws shall be delivered to the Secretary at the principal
executive offices of the corporation not earlier than the 100th day prior to
such special meeting and not later than the close of business on the later of
the 75th day prior to such special meeting or the 10th day following the day on
which such public announcement is first made of the date of the special meeting
and of the nominees proposed by the Board of Directors to be elected at such
meeting.
Only such persons who are nominated in accordance with the procedures set
forth in these By-laws shall be eligible to serve as directors and only such
business shall be conducted at a special meeting of shareholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this By-Law. The chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made in accordance with the procedures set forth in this By-Law and,
if any proposed nomination or business is not in compliance with this By-Law, to
declare that such defective proposal shall be disregarded.
Notwithstanding the foregoing provisions of this By-Law, a shareholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
By-Law. Nothing in this By-Law shall be deemed to affect any rights of
shareholders to request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
Section 3 -- Place of Meeting.
--------- ----------------
All meetings of the shareholders shall be held at such place within or
without the state of Wisconsin as shall be fixed by the Board of Directors from
time to time.
Section 4 -- Notice of Meeting.
--------- -----------------
Written notice stating the place, day and hour of the meeting and, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten nor more than ninety days before the date of the meeting, either
personally or by mail, by or at the direction of the President, or the
Secretary, or the officer or persons calling the meeting, to each shareholder of
record entitled to vote at such meeting. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail, addressed to the
shareholder at his address as it appears on the stock record books of the
corporation, with postage thereon prepaid.
4
<PAGE>
Section 5 -- Closing of Transfer Books or Fixing of Record Date.
--------- --------------------------------------------------
The Board of Directors may fix a future date as the record date for one or
more voting groups in order to determine the shareholders entitled to notice of
a shareholders meeting, to demand a special meeting, or to vote or to take any
other action. The record date may not be more than seventy days nor less than
fifteen days before the meeting or action requiring a determination of
shareholders. Except as otherwise provided by these By-Laws, a determination of
shareholders entitled to notice of or to vote at a shareholders meeting is
effective for any adjournment of the meeting unless the Board of Directors fixes
a new record date, which it shall do if the meeting is adjourned to a date more
than one hundred twenty days after the date fixed for the original meeting. The
Board of Directors may from time to time fix in advance a date, not more than
seventy days prior to the date for the payment of any dividend, or the date for
the allotment of any rights, or the date when any change or conversion or
exchange of shares shall become effective, as a record for the determination of
the shareholders entitled to receive payment of any such dividend, or to any
such allotment of rights, or to exercise the rights in respect of any such
change, conversion, or exchange of shares, and only such shareholders as shall
be shareholders of record on the date so fixed shall be entitled to receive
payment of such dividend, or to receive such allotment of rights, or to exercise
such rights, notwithstanding any transfer of any shares on the books of the
corporation after any such record date so fixed.
Section 6 -- Shareholders' List For Meeting.
--------- ------------------------------
After fixing a record date for a meeting, the corporation shall prepare a
list of the names of all its shareholders who are entitled to notice of a
shareholders meeting. The list shall be arranged by class or series of shares
and show the address of and number of shares held by each shareholder.
The corporation shall make the shareholders' list available for inspection
by shareholders, beginning two business days after notice of the meeting is
given for which the list was prepared and continuing to the date of the meeting,
at the corporation's principal office or at a place identified in the meeting
notice in the city where the meeting will be held. A shareholder or his or her
agent or attorney may, on written demand, inspect the list, and during regular
business hours and at his or her expense, during the period that it is available
for inspection under this section copy such list, provided, however, that the
shareholder's demand to copy such list is made in good faith and for a proper
purpose, that the shareholder describes with reasonable particularity his or her
purpose and that the shareholders' list that he or she desires to copy is
directly connected with his or her purpose.
5
<PAGE>
The corporation will make the shareholders' list available at the meeting,
and any shareholder or his or her agent or attorney may inspect the list at any
time during the meeting or any adjournment.
Section 7 -- Quorum.
--------- ------
A majority of the outstanding shares of the corporation entitled to vote at
the meeting, represented in person or by proxy, shall constitute a quorum at a
meeting of shareholders. Though less than a quorum of the outstanding shares
are represented at a meeting, a majority of the shares so represented may
adjourn the meeting from time to time without further notice. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 8 -- Proxies.
--------- -------
At all meetings of shareholders, a shareholder entitled to vote may vote by
proxy appointed in writing by the shareholder or by his duly authorized attorney
in fact. Such proxy shall be filed with the Secretary of the corporation before
or at the time of the meeting. No proxy shall be valid after eleven months from
the date of its execution, unless otherwise provided in the proxy. Each proxy
shall be revocable unless expressly provided therein to be irrevocable and
unless otherwise made irrevocable by law.
Section 9 -- Voting of Shares.
--------- ----------------
Each outstanding share shall be entitled to one vote on each matter
submitted to a vote at the meeting of shareholders, except to the extent that
the voting rights of the shares of any class are limited or denied by the
Articles of Incorporation or by a resolution of the Board of Directors
designating a series of preferred stock. At each election for Directors, every
shareholder entitled to vote at such election shall have the right to vote, in
person or by proxy, the number of shares owned by him for as many persons as
there are Directors to be elected and for whose election he has a right to vote,
but without the right to cumulate votes. Except with respect to the election of
Directors, and unless required by statute or determined by the chairman of the
meeting to be advisable, the vote on any question need not be by ballot. If a
quorum is present at any meeting of shareholders, the vote of the holders of a
majority of the shares cast by the holders of shares entitled to vote on the
matter shall be sufficient for the transaction of any business, except that
directors shall be elected by a plurality of shares cast by the holders of
shares entitled to vote in the election.
6
<PAGE>
Section 10 -- Inspectors of Election.
---------- ----------------------
Prior to each meeting of shareholders, the Board of Directors shall appoint
not more than three Inspectors, who shall not be directors or officers of the
corporation or candidates for the office of director. Such Inspectors shall
count and report to the meeting the votes cast on all matters submitted to a
vote at such meeting. In the case of failure of the Board of Directors to make
such appointments, or in the case of failure of any Inspector so appointed to
act, the chairman of the meeting shall make such appointments or fill such
vacancies. Each Inspector shall be entitled to a reasonable compensation from
the corporation for his services. The Inspectors appointed to act at any
meeting of the shareholders, before entering upon the discharge of their duties,
shall be sworn faithfully to execute the duties of Inspectors at such meeting
with strict impartiality and according to the best of their ability, and the
oath so taken shall be subscribed by them.
Section 11 -- Voting Company's Shares.
---------- -----------------------
Shares of the corporation belonging to it shall not be voted directly or
indirectly at any meeting and shall not be counted in determining the total
number of outstanding shares at any given time, but shares held by this
corporation in a fiduciary capacity may be voted and shall be counted in
determining the total number of outstanding shares at any given time.
Section 12 -- Shares in Other Corporation's Name.
---------- ----------------------------------
Shares standing in the name of another corporation may be voted either in
person or by proxy, by the president of such corporation or any other officer
appointed by such president. A proxy executed by any principal officer of such
other corporation or assistant thereto shall be conclusive evidence of the
signer's authority to act, in the absence of express notice to this corporation,
given in writing to the secretary of this corporation, of the designation of
some other person by the board of directors or the by-laws of such other
corporation.
Section 13 -- Order of Business.
---------- -----------------
The order of business of each meeting of the shareholders of the
corporation shall be determined by the chairman of the meeting. The chairman of
the meeting shall have the right and authority to proscribe such rules,
regulations and procedures and do all acts and things as are necessary or
desirable for the conduct of the meeting, including without limitation, the
establishment of procedures for the dismissal of business not properly
presented, the maintenance of order and safety, limitations on the time allotted
to questions or comments on the affairs of the corporation, restrictions on
entry to such meetings after the time
7
<PAGE>
prescribed for commencement thereof and opening and closing of the voting polls.
ARTICLE III
-----------
BOARD OF DIRECTORS
------------------
Section 1 -- General Powers.
--------- --------------
The business and affairs of the corporation shall be managed by and under
the direction of its Board of Directors, which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the Articles of Incorporation or by these By-Laws directed or required to be
exercised and done by the shareholders.
Section 2 -- Number, Tenure and Qualifications.
--------- ---------------------------------
The number of directors of the corporation shall be seven (7). Each
director shall hold office until the next annual meeting of shareholders and
until his successor shall have been elected and qualified. Directors need not
be residents of the State of Wisconsin or shareholders of the corporation.
Section 3 -- Regular Meetings.
--------- ----------------
Regular meetings of the Board of Directors shall be held without further
notice than this By-Law immediately after and at the same place, as the annual
meeting of shareholders, and each adjourned session thereof and on the 4th
Tuesday in November, February and May of each year, at the principal offices of
the corporation at the hour of 9:00 a.m. The Chairman of the Board of the
corporation may, upon not less than five (5) days written notice to all members
of the Board of Directors, provide for a variance in the time, date or location
of any such meeting.
Section 4 -- Special Meetings.
--------- ----------------
Special meetings of the Board of Directors may be called by or at the
request of the Chairman of the Board, President or any two directors. The person
or persons authorized to call special meetings of the Board of Directors may fix
any place, either within or without the State of Wisconsin, as the place for
holding any special meeting of the Board of Directors called by them.
Section 5 -- Notice.
--------- ------
Notice of any special meeting shall be given at least 48 hours previously
thereto by written notice delivered personally or mailed to each director at his
business address, or by telegram. If mailed, such notice shall be deemed to be
delivered when deposited
8
<PAGE>
in the United States mail so addressed, with postage thereon prepaid. If notice
be given by telegram, such notice shall be deemed to be delivered when the
telegram is delivered to the telegraph company. Whenever any notice whatever is
required to be given to any director of the corporation under the provisions of
these by-laws or under the provisions of the articles of incorporation or under
the provisions of any statute, a waiver thereof in writing, signed at any time,
whether before or after the time of meeting, by the director entitled to such
notice, shall be deemed equivalent to the giving of such notice. The attendance
of a director at a meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting and objects thereat to the transaction
of any business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
Section 6 -- Quorum.
--------- ------
A majority of the number of directors fixed by Section 2 of this Article
III shall constitute a quorum for the transaction of business at any meeting of
the Board of Directors, but though less than such quorum is present at a
meeting, a majority of the directors present may adjourn the meeting from time
to time without further notice.
Section 7 -- Resignation and Removal.
--------- -----------------------
Any director may resign at any time upon giving written notice to the
corporation. Any director may be removed from office by the affirmative vote of
a majority of the shares outstanding entitled to vote for the election of such
director taken at a special meeting of shareholders called for that purpose.
Section 8 -- Vacancies.
--------- ---------
The Board of Directors may fill any vacancy (occurring by resignation,
removal or otherwise) in the board happening after any regular annual election
or any vacancy created by an increase in the authorized number of directors
until the next succeeding election, by the affirmative vote of a majority of the
directors then in office, although less than a quorum.
Section 9 -- Compensation.
--------- ------------
The Board of Directors, by affirmative vote of a majority of the directors
then in office, and irrespective of any personal interest of any of its members
may establish reasonable compensation of all directors for services to the
corporation as directors, officers or otherwise, or may delegate such authority
to an appropriate committee.
9
<PAGE>
Section 10 -- Presumption of Assent.
---------- ---------------------
A director of the corporation who is present at a meeting of the Board of
Directors or a committee thereof at which action on any corporate matter is
taken shall be presumed to have assented to the action taken unless his dissent
shall be entered in the minutes of the meeting or unless he shall file his
written dissent to such action with the person acting as the secretary of the
meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
Section 11 -- Committees.
---------- ----------
The Board of Directors by resolution adopted by the affirmative vote of a
majority of the number of directors fixed by Section 2 of this Article III may
designate an Executive Committee, an Audit Committee, a Human Resources
Committee, a Nominating and Proxy Committee, and one or more other committees,
each committee to consist of two or more directors elected by the Board of
Directors. The Board of Directors may elect one or more of its members as
alternate members of any such committee who may take the place of any absent
member or members at any meeting of such committee, upon request by the
President or upon request by the chairman of such meeting. Each such committee
shall fix its own rules governing the conduct of its activities and shall make
such reports to the Board of Directors of its activities as the Board of
Directors may request.
Any Executive Committee which to the extent provided in said resolution, as
initially adopted, and as thereafter supplemented or amended by further
resolution adopted by a like vote, shall have and may exercise, when the Board
of Directors is not in session, the powers of the Board of Directors in the
management of the business and affairs of the corporation, except as otherwise
limited by law.
Any Human Resources Committee designated by the Board of Directors shall
consist of not less than two (2) directors who shall be neither officers nor
employees of the corporation or its subsidiaries or any person having a
relationship which, in the opinion of the Board of Directors, would interfere
with the exercise of independent judgment in carrying out the responsibilities
of a director. The Human Resources Committee shall have the responsibility for
(a) authorizing the grant of stock options under any employee stock option plan;
(b) making recommendations to the Board of Directors with respect to the
salaries and bonuses to be paid to officers of the Company and the terms and
conditions of their employment; and (c) reviewing the overall compensation plans
and policies of the corporation, fringe benefit programs and other
10
<PAGE>
conditions of employment and recommending to the Board of Directors changes or
modifications thereof.
Any Audit Committee designated by the Board of Directors shall consist of
not less than two (2) directors who shall be neither officers nor employees of
the corporation or its subsidiaries or any person having a relationship which,
in the opinion of the Board of Directors, would interfere with the exercise of
independent judgment in carrying out the responsibilities of a director. The
Audit Committee shall have responsibility to (a) review the proposal by the
corporation's independent public accountants for the audit of the corporation
for the current year; (b) recommend to the Board of Directors, for appointment
by the Board, the firm of independent public accountants to audit the books,
records and accounts of the corporation; (c) review all recommendations made by
the corporation's independent public accountants with respect to accounting
principles, accounting methods used and adequacy of systems of internal control
to be followed by the corporation and advise the Board of Directors with respect
thereto; (d) examine and make recommendations to the Board of Directors with
respect to the scope of the audit conducted by the corporation's independent
public accountants; (e) review and discuss with the independent public
accountants the scope of the audits performed by the corporation's internal
audit staff; and (f) assist the Board of Directors in fulfilling its fiduciary
responsibilities for financial reporting and internal accounting controls.
Any Nominating and Proxy Committee designated by the Board of Directors
shall consist of the President and such number of other directors, not less than
two, as from time to time shall be prescribed by the Board of Directors, who
shall hold office until their respective successors are elected. The Nominating
and Proxy Committee shall have the duty and responsibility of recommending to
the Board of Directors, prior to the annual shareholders' meeting each year, the
nominees for election to the Board of Directors for whom the corporation should
solicit proxies and recommending, prior to the annual directors' meeting each
year, nominees for election as President for the ensuing year.
ARTICLE IV
----------
OFFICERS
--------
Section 1 -- Number.
--------- ------
The principal officers of the corporation shall be a Chairman of the Board,
a President, a Co-President, Vice-Presidents, a Secretary, and a Treasurer, each
of whom shall be elected by the Board of Directors. Such other officers and
assistant officers as may be deemed necessary may be elected or appointed by
11
<PAGE>
the Board of Directors. Any two or more offices may be held by the same person,
except the offices of President and Secretary and the offices of President and
Vice-President.
Section 2 -- Election and Term of Office.
--------- ---------------------------
The officers of the corporation to be elected by the Board of Directors
shall be elected annually by the Board of Directors at the first meeting of the
Board of Directors held after each annual meeting of the shareholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. Each officer shall hold office
until his successor shall have been duly elected and shall have qualified or
until his death or until he shall resign or shall have been removed in the
manner hereinafter provided.
Section 3 -- Removal.
--------- -------
Any officer or agent elected or appointed by the Board of Directors may be
removed by the Board of Directors whenever in its judgment the best interests of
the corporation will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election or
appointment shall not of itself create contract rights.
Section 4 -- Vacancies.
--------- ---------
A vacancy in any principal office because of death, resignation, removal,
disqualification or otherwise, shall be filled by the Board of Directors for the
unexpired portion of the term.
Section 5 -- Chairman of the Board.
--------- ---------------------
The Chairman of the Board shall be the chief executive officer of the
corporation and shall have general direction over the affairs of the
corporation, subject to the control and direction of the Board of Directors.
The Chairman shall, when present, preside as chairman at all meetings of the
shareholders and the Board of Directors. The Chairman may call meetings of the
shareholders and of the Board of Directors and of the committees whenever he
deems it necessary.
Section 6 -- President.
--------- ---------
The President shall be the chief operating officer of the corporation and,
subject to the control of the Chairman of the Board and Board of Directors of
the corporation, shall in general supervise and control all of the business and
affairs of the corporation. He shall, when the Chairman of the Board is
unavailable, preside, as Chairman, at all meetings of the shareholders and of
the Board of Directors. He may sign, with the Secretary or any
12
<PAGE>
other proper officer of the corporation thereunto authorized by the Board of
Directors, certificates for shares of the corporation, any deeds, mortgages,
bonds, contracts, or other instruments which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these by-
laws to some other officer or agent of the corporation, or shall be required by
law to be otherwise signed or executed; and in general shall perform all duties
incident to the office of President and such other duties as may be prescribed
by the Chairman of the Board or Board of Directors from time to time.
Section 7 -- Co-President.
--------- ------------
In the absence of the President, or in the event of his death, inability or
refusal to act, the Co-President shall perform the duties of the President, and
when so acting, shall have all of the powers of and be subject to all of the
restrictions upon the President. He shall also perform such duties as may be
delegated to him by the President or Chairman of the Board or as may be
prescribed by the Board of Directors, from time to time.
Section 8 -- The Vice-Presidents.
--------- -------------------
In the absence of the President and the Co-President or in the event of
their death, inability or refusal to act, the Vice-President (or in the event
there be more than one Vice-President, the Vice-Presidents in the order
designated at the time of their election, or in the absence of any designation,
then in the order of their election) shall perform the duties of the President,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. Any Vice-President may sign, with the
Secretary or an Assistant Secretary certificates for shares of the corporation;
and shall perform such other duties as from time to time may be assigned to him
by the President or by the Board of Directors.
Section 9 -- The Secretary.
--------- -------------
The Secretary shall: (a) keep the minutes of the shareholders' and of the
Board of Directors' meetings in one or more books provided for that purpose; (b)
see that all notices are duly given in accordance with the provisions of these
by-laws or as required by law; (c) be custodian of the corporate records and of
the seal of the corporation and see that the seal of the corporation is affixed
to all documents the execution of which on behalf of the corporation under its
seal is duly authorized; (d) keep a register of the postoffice address of each
shareholder which shall be furnished to the Secretary by such shareholder; (e)
sign with the President, or a Vice-President, certificates for shares of the
corporation, the issuance of which shall have been authorized by resolution of
the Board of Directors; (f) have general charge of
13
<PAGE>
the stock transfer books of the corporation; and (g) in general perform all
duties incident to the office of Secretary and such other duties as from time to
time may be assigned to him by the President or by the Board of Directors.
Section 10 -- The Treasurer.
---------- -------------
If required by the Board of Directors, the Treasurer shall give a bond for
the faithful discharge of his duties in such sum and with such surety or
sureties as the Board of Directors shall determine. He shall: (a) have charge
and custody of and be responsible for all funds and securities of the
corporation; receive and give receipts for moneys due and payable to the
corporation from any source whatsoever, and deposit all such moneys in the name
of the corporation in such banks, trust companies or other depositaries as shall
be selected in accordance with the provisions of Article V of these By-Laws; and
(b) in general perform all of the duties incident to the office of Treasurer and
such other duties as from time to time may be assigned to him by the President
or by the Board of Directors.
Section 11 -- Assistant Secretaries and Assistant Treasurers.
---------- ----------------------------------------------
The Assistant Secretaries, when authorized by the Board of Directors, may
sign with the President or a Vice-President certificates for shares of the
corporation the issuance of which shall have been authorized by a resolution of
the Board of Directors. The Assistant Treasurers shall respectively, if required
by the Board of Directors, give bonds for the faithful discharge of their duties
in such sums and with such sureties as the Board of Directors shall determine.
The Assistant Secretaries and Assistant Treasurers, in general, shall perform
such duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the President or the Board of Directors.
Section 12 -- Salaries.
---------- --------
The salaries of the officers shall be fixed from time to time by the Board
of Directors and no officer shall be prevented from receiving such salary by
reason of the fact that he is also a director of the corporation.
ARTICLE V
---------
CONTRACTS, LOANS, CHECKS, AND DEPOSITS
--------------------------------------
Section 1 -- Contracts.
--------- ---------
The Board of Directors may authorize any officer or officers, agent or
agents, to enter into any contract or execute and deliver any instrument in the
name of and on behalf of the
14
<PAGE>
corporation, and such authorization may be general or confined to specific
instances.
Section 2 -- Loans.
--------- -----
No loans shall be contracted on behalf of the corporation and no evidences
of indebtedness shall be issued in its name unless authorized by or under the
authority of a resolution of the Board of Directors. Such authorization may be
general or confined to specific instances.
Section 3 -- Checks, Drafts, etc.
--------- -------------------
All checks, drafts or other orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the corporation, shall be signed
by such officer or officers, agent or agents of the corporation and in such
manner as shall from time to time be determined by or under the authority of
resolution of the Board of Directors.
Section 4 -- Deposits.
--------- --------
All funds of the corporation not otherwise employed shall be deposited from
time to time to the credit of the corporation in such banks, trust companies or
other depositaries as may be selected by or under the authority of the Board of
Directors.
ARTICLE VI
----------
CERTIFICATES FOR SHARES AND THEIR TRANSFER
------------------------------------------
Section 1 -- Certificates for Shares.
--------- -----------------------
The corporation shall deliver certificates representing all shares to which
shareholders are entitled. Such certificates shall be numbered and shall be
entered on the books of the corporation as they are issued and shall be signed
by the President or Vice President and the Secretary or an Assistant Secretary
of the corporation, and may be sealed with the seal of the corporation or a
facsimile thereof. The signatures of the President or Vice President, Secretary
or Assistant Secretary may be facsimiles, if the certificate is countersigned by
a transfer agent or registered by a registrar, either of which is other than the
corporation itself or an employee of the corporation. In case any officer who
has signed or whose facsimile signature has been placed upon such certificate
shall have ceased to be such officer before such certificate is issued, it may
be issued by the corporation with the same effect as if he were such officer at
the date of its issuance. There shall be set forth upon the face or back of the
certificate a statement that the corporation will furnish to any stockholder
upon request and without charge, a summary of the designations,
15
<PAGE>
preferences, limitations and relative rights applicable to each class and, if
the corporation is authorized to issue any series, the variations in rights,
preferences and limitations between the shares of each such series so far as the
same have been fixed and determined and the authority of the Board of Directors
to fix and determine the relative rights and preferences of subsequent series.
Each certificate representing shares shall state upon the face thereof that the
corporation is organized under the laws of the State of Wisconsin, the name of
the person to whom issued, the number and class and the designation of the
series, if any, which such certificate represents and the par value of each
share represented by such certificate or a statement that the shares are without
par value. No certificate shall be issued for any share until the consideration
therefor has been fully paid.
Section 2 -- Transfer Agent.
--------- --------------
The corporation may maintain one or more transfer offices or agencies, each
under control of a Transfer Agent, where the shares of the corporation may be
transferable. The corporation may maintain one or more registry offices or
agencies, each under the control of a Registrar, where the shares may be
registered. The board of directors may make such additional rules and
regulations as it may deem expedient concerning the issue, transfer, and
registration of certificates for shares of the corporation.
Section 3 -- Transfer of Shares.
--------- ------------------
Transfer of shares of the corporation shall be made only on the stock
transfer books of the corporation by the holder of record thereof or by his
legal representative, who shall furnish proper evidence of authority to
transfer, or by his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary of the corporation or with any authorized
Transfer Agent, and on surrender for cancellation of the certificate for such
shares. The person in whose name shares stand on the books of the corporation
shall be deemed by the corporation to be the owner thereof for all purposes.
Section 4 -- Lost, Stolen or Destroyed Certificates.
--------- --------------------------------------
The Board of Directors may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen or destroyed upon the making of an
affidavit of that fact by the person claiming the certificate to be lost, stolen
or destroyed. When authorizing such issue of a new certificate or certificates,
the Board of Directors, in its discretion and as a condition precedent to the
issuance thereof, may require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as
16
<PAGE>
it shall require and/or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 5 -- Stock Regulations.
--------- -----------------
The Board of Directors shall have the power and authority to make all such
further rules and regulations not inconsistent with the statutes of the State of
Wisconsin as they may deem expedient concerning the issue, transfer and
registration of certificates representing shares of the corporation.
ARTICLE VII
-----------
FISCAL YEAR
-----------
The fiscal year of the corporation shall begin on the first day of May and
end on the thirtieth day of April in each year.
ARTICLE VIII
------------
DIVIDENDS
---------
The Board of Directors may from time to time declare, and the corporation
may pay, dividends on its outstanding shares in the manner and upon the terms
and conditions provided by law and its articles of incorporation.
ARTICLE IX
----------
SEAL
----
The Board of Directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the corporation
and the words, "Corporate Seal, Wisconsin."
ARTICLE X
---------
INDEMNIFICATION
---------------
The corporation shall indemnify each officer and director of the
corporation to the full extent provided by applicable law and, in addition, in
accordance with any other rights such persons may have under a resolution of the
shareholders of the corporation, a resolution of its Board of Directors or under
the corporation's Articles of Incorporation, as amended
17
<PAGE>
and restated from time to time, or pursuant to any insurance policy, an
agreement or otherwise. Any person entitled to indemnification or to the
reimbursement or advancement of expenses hereunder may elect, to the extent
permitted by law, to have the right of indemnification (or reimbursement or
advancement of expenses) interpreted on the basis of the applicable law in
effect at the time of the occurrence of the event or events giving rise to the
action, suit or proceeding or on the basis of the applicable law in effect as of
the date these Amended and Restated By-Laws are adopted. The foregoing rights
to indemnification shall be in addition to any other rights such person may have
under a resolution of the shareholders of the corporation, a resolution of its
directors, the Articles of Incorporation of the corporation, as amended and
restated from time to time, common law, any insurance policy, any written
agreement or otherwise.
ARTICLE XI
----------
AMENDMENTS
----------
Section 1 -- Board of Directors.
--------- ------------------
The Board of Directors may from time to time, by vote of a majority of its
members, adopt, amend or repeal any and all of the By-Laws of this corporation
except such By-Laws as may have been adopted by the subscribers or Shareholders
of the corporation.
Section 2 -- Shareholders.
--------- ------------
The Shareholders may from time to time, by vote of a majority, adopt, amend
or repeal any and all of the By-Laws of the corporation.
18
<PAGE>
AMENDMENT NO. 1 TO BY-LAWS OF
MARQUETTE MEDICAL SYSTEMS, INC
(Formerly Known as Marquette Electronics, Inc.)
(As Adopted May 21, 1996)
1. Section 1 of Article IV be and is hereby amended to read as follows:
"Section 1 -- Number. The principal officers of the Corporation shall
------
be a Chairman of the Board, a President and Chief Operating Officer, Vice
Presidents, Divisional Presidents, a Secretary and a Treasurer, each of
whom shall be elected by the Board of Directors. Such other officers and
assistant officers as may be deemed necessary may be elected or appointed
by the Board of Directors. Any two or more offices may be held by the same
person except the offices of President and Secretary and the offices of
President and Vice President."
2. Section 7 of Article IV be and is hereby deleted in its entirety.
3. Section 8 of Article IV be and is hereby amended by substituting for
the phrase "in the absence of the President and the Co-President or in the event
of their death", the phrase "in the absence of the President or in the event of
his death".
4. Section 8 is hereby renumbered to appear as Section 7 and a new
Section 8 is hereby added, to read as follows:
"Section 8. -- The Division Presidents.
-----------------------
One or more Division Presidents, each of whose division shall be identified
as part of his title, may be elected to manage and operate a business
division of the Corporation recognized by the Board of Directors and shall
report to the President and Chairman of the Board."
5. This Amendment shall be known as Amendment No. 1 to the Amended and
Restated By-Laws of Marquette Electronics, Inc.
6. In all other respects, the Amended and Restated By-Laws of Marquette
Electronics, Inc. as adopted on January 8, 1996, shall remain in full force and
effect.
<PAGE>
AMENDMENT NO. 2 TO BY-LAWS OF
MARQUETTE MEDICAL SYSTEMS, INC.
(Formerly Known as Marquette Electronics, Inc.)
(As Adopted November 20, 1996)
1. Article XI is hereby redesignated as Article XII and the following be and
is hereby adopted as Article XI of the By-Laws, to-wit:
"ARTICLE XI
-----------
Conflicts of Interest
---------------------
1. A Director shall be considered to have a conflict of interest if:
(a) The Director has existing or potential financial or other
interests which impair or might reasonably appear to impair their independent,
unbiased judgment in the discharge of their responsibilities to the Corporation.
(b) Directors are aware that a member of their family (which for the
purposes of this paragraph shall be a spouse, parents, siblings, children, and
any other relative if the latter resides in the same household as the Director)
has such existing or potential or other interests.
(c) Any organization in which the Director (or member of their family)
is an officer, director, employee, member, partner, trustee, or controlling
stockholder has such existing or potential or other interests.
2. The following guidelines exist in cases where a real or perceived
conflict of interest exists:
(a) The Director shall disclose to the Board any possible conflict of
interest at the earliest practical time.
(b) No Director shall vote on any matter under consideration at a
Board or Committee meeting, in which such director has a conflict of interest.
(c) The minutes of such meeting shall reflect that a disclosure was
made and that the Director having a conflict of interest abstained from voting.
(d) Any Director who is uncertain whether a conflict of interest may
exist in any matter may request the Board or Committee to resolve the questions
by majority vote."
3. This Amendment shall be known as Amendment No. 2 to the Amended
and Restated By-Laws of Marquette Medical Systems, Inc.
<PAGE>
4. In all other respects, the Amended and Restated By-Laws of Marquette
Medical Systems, Inc., as adopted on January 8, 1996, and amended by
Amendment No. 1 adopted May 21, 1996, shall remain in full force and
effect.
